FEDERAL ELECTION COMMISSION

Washington, DC 20463

MEMORANDUM

TO:

FROM:

DATE: 

SUBJECT: 

The Commission 

Office of the Commission Secretary VFV

October 18, 2022

AOR 2022-24 (Allen Blue) Comment from Campaign 

Legal Center

Attached is a comment received from Campaign Legal Center.

Attachment
Lisa J. Stevenson 

Acting General Counsel 

Federal Election Commission 

1050 First Street, NE 

Washington, DC 20463 

ao@fec.gov 

RE: Advisory Opinion Request 2022-24 (Allen Blue) 

Dear Ms. Stevenson, 

Campaign Legal Center (“CLC”) respectfully submits this comment regarding 

Advisory Opinion Request 2022-24 (Allen Blue). The requestor intends to 

establish a testamentary trust that will make contributions to federal 

candidates and committees, and seeks the Commission’s guidance on “how to 

properly attribute the trust’s contributions if the trustee of the trust has some 

discretion over the trust’s funds.”1 Specifically, the requestor asserts that “the 

terms of the requestor’s trust may include both strict guidelines based on 

objective criteria as to which candidates for public office receive disbursements 

and broader guidelines to the trustee of how to ultimately distribute the trust’s 

funds,” and seeks confirmation “that in both instances, the contribution should 

be reported in the name of the trust and not in the name of the trustee.”2 The 

Commission’s regulations and prior advisory opinions, however, do not support 

that conclusion. 

The Federal Election Campaign Act (“FECA” or the “Act”) and Commission 

regulations both specify that any contribution made by a person on behalf of or 

to a candidate, including a contribution that is earmarked or otherwise 

directed to the candidate through an intermediary or conduit, is a contribution 

from that person to the candidate.3 If the intermediary or conduit merely 

1 Advisory Opinion Request 2022-24 (Allen Blue) (“AOR”) at 1. 

2 AOR at 5. 

3 52 U.S.C. § 30116(a)(8); 11 C.F.R. § 110.6(a). An earmark is “a designation, instruction, 

or encumbrance, whether direct or indirect, express or implied, oral or written, which results 
2

forwards the earmarked contribution to the candidate, then the contribution is 

only attributed to the original contributor, not the intermediary or conduit; if, 

however, a “conduit or intermediary exercises any direction or control” over the 

choice of the recipient of the contribution, then the contribution is attributed 

to both the original contributor and the intermediary or conduit.4 

Consistent with these rules, the Commission has previously approved the 

attribution of a trust’s contributions solely to the trust, rather than its trustees, 

in the limited circumstances where the trustees were explicitly precluded from 

exercising discretion over the contributions — i.e., circumstances distinct from 

those presented by Allen Blue. 

For instance, in Advisory Opinion 2004-02, where the request specifically 

stated that the “testator or executor of the estate will select the trustee, and 

the trustee would exercise no discretion regarding the amount of the 

contribution” to the recipient committee,5 the Commission concluded that the 

committee receiving the contributions must “disclos[e] the name of the both 

the trust and the name of the decedent.”6 

The requestor here asserts that in Advisory Opinion 1996-03, the “Commission 

implicitly approved the broad discretion of the foundation’s trustees when it 

determined that contributions should be attributed to the testator and the 

foundation, rather than the trustees.”7 But that advisory opinion is inapposite: 

the Commission concluded that contributions from a foundation created by a 

testamentary trust should be attributed to the foundation, rather than its 

trustees. 8 The Commission explicitly acknowledged that foundations and 

trusts are “not identical,” and that those forms were entitled to analogous 

treatment only in “the specific circumstances” of a foundation that is a 

“successor in interest” to a trust.9 No foundation — much less a foundation that 

is a successor in interest to a trust — is at issue in AOR 2022-24. And in any 

event, this portion of Advisory Opinion 1996-03 appears to be dicta, as it is 

legally unrelated to the question presented in that matter, which was whether 

the foundation qualified for political committee status.10 

in all or any part of a contribution or expenditure being made to, or expended on behalf of, a 

clearly identified candidate or a candidate’s authorized committee.” 11 C.F.R. § 110.6(b)(1). 

4 11 C.F.R. § 110.6(d). 

5 Advisory Op. 2004-02 (NCEC) at 2 (emphasis added). 

6 Id. at 3. The Commission also stated that the recipient committee could not directly or 

indirectly exercise control over the trusts. Id.

7 AOR at 5. 

8 Advisory Op. 1996-03 (Breeden-Schmidt Foundation) at 3. 

9 See id. 

10 See id. at 1, 3. 
3

The requestor also states that in Advisory Opinion 2019-01, “the Commission 

allowed an entity to earmark contributions for future Democratic candidates 

who are not yet identified,”11 but leaves out a crucial detail: the Commission 

specifically delineated four criteria for when an intermediary may lawfully 

accept a “conditional contribution,” including that “an objective, easily 

determinable, condition outside the control of the intermediary” triggers the 

disbursement of funds, and that such condition must be met within a specified 

timeframe. 12 As such, the Commission’s emphasis was again on the 

intermediary executing the original contributor’s wishes based on objective 

conditions, not exercising their own discretion based on guidelines. 

The Commission’s rules regarding the reporting of earmarked contributions 

should therefore guide its response to the question asked here. If, as the 

request indicates, the trustees have discretion in deciding the amount or 

recipients of the trust’s contributions, then they are “excercis[ing] direction or 

control” such that — like an earmarked contribution — the contributions 

should be attributed both to the trust (the original contributor) as well as the 

trustees (the conduit or intermediary). 

Accordingly, we respectfully urge the Commission to conclude that if trustees 

can exercise discretion regarding a testamentary trust’s contribution — even 

if they are provided “broad[ ] guidelines” of how to do so13 — then the trustees 

have also made that contribution for the purposes of the Act’s contribution 

limits, source prohibitions, and reporting requirements. 

We thank the Commission for the opportunity to submit this comment. 

 Sincerely, 

 /s/ Saurav Ghosh 

Saurav Ghosh 

Campaign Legal Center 

1101 14th St. NW, Suite 400 

Washington, DC 20005 

11 AOR at 5. 

12 Advisory Op. 2019-01 (It Starts Today) at 3. 

13 AOR at 5.